On June 17, the U.S. Supreme Court held that the police department in Ontario, California, did not violate the Fourth Amendment rights of SWAT team member Sgt. Jeff Quon by reviewing text messages sent and received by Quon on a department-issued pager.

Although the Supreme Court assumed that Quon had a reasonable privacy expectation, it nonetheless concluded that the city’s search was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope. Because of the newness and evolving nature of cell phone and text message communications, the Supreme Court declined to make any broad pronouncements concerning employee privacy rights in electronic communications using employer-issued equipment.

Notwithstanding its narrow and fact-specific nature, the high court’s ruling still provides useful guidance for private employers.

Most significantly, the court emphasized the importance of a well-crafted and broadly distributed electronic resources policy as a means of shaping employees’ privacy expectations. Employers can rely on such policies when defending against an employee’s claim that the employer improperly reviewed the employee’s electronic communications.

The court also highlighted a key distinction between corporate e-mail on an employer-owned server and text messages sent by cell phone, which are typically transmitted through the cell phone provider’s server. In Quon, this distinction was important because the department’s e-mail policy focused on e-mail sent through the department’s server and did not mention text messages.

However, the court emphasized that the department had informed SWAT team members, when issuing pagers to them, that the e-mail policy would be applied to text messages transmitted through the service provider. Similarly, private employers should ensure that their electronic resources policy is not limited to e-mail or to communications transmitted through the company’s e-mail server.

Although not deciding the issue of Quon’s privacy rights, the Supreme Court did give some weight, in passing, to Quon’s contention that a management-level police official had created an expectation of privacy for Quon by telling him that the official would not audit Quon’s text messages if Quon paid any required overage charges.

Private employers should use policy language and training to avoid a situation where an employee could allege that a manager countermanded corporate policy aimed at defeating employees’ privacy expectations in their electronic communications.

The Supreme Court’s holding—that Quon’s claim failed because the department’s search was legitimate and reasonable—demonstrates that private employers can substantially reduce their potential exposure on privacy-based claims by acting reasonably when searching and reviewing employees’ electronic communications.

In Quon, for example, the department initiated its investigation for the legitimate purpose of determining whether the department’s character restrictions on text messages were too low and, therefore, whether the requirement that SWAT team members pay overage charges for work-related texts should be changed.

In addition, the department reviewed only a relevant sampling of Quon’s texts, and the internal investigator who conducted the review redacted all messages sent or received by Quon during nonworking hours. The department’s precautions demonstrated that, by conducting an investigation to accomplish a legitimate business purpose and in a manner that is not excessive, private employers can defeat claims based upon a review of an employee’s electronic communications, even if a court were to find that the employee had a reasonable expectation of privacy in those communications.

As employees increasingly access personal e-mail accounts using employer-issued equipment and rely more heavily on personal smart phones to conduct company business, the privacy issues confronted by private employers (and the courts) will only become more complex. Here again, a well-crafted and broadly distributed policy that puts employees on notice of how and when the employer will access these communications can go a long way toward strengthening the employer’s hand in litigation.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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